Vol. XXXIX, No. 10 ISSN-0970-8693 OCTOBER 2019 Rs. 20

Bihar PUCL had organised a one day convention on Kashmir on 8 September 2019. The Abrogation of Art.370: A Great I had presented my view, which has a different approach - Prabhakar Sinha Betrayal - Prabhakar Sinha (1) The Abrogation of Art.370: A Great Betrayal Prabhakar Sinha The move to virtually abrogate Art.370 and Art.35 A should not be looked Criticism of Government, Army & Judiciary at purely in legal terms. It has to be tested on the touchstone of legitimacy can't be construed as Sedition - Justice morality and conformity with democratic values. If the legality of an act Deepak Gupta (3); Fallout of Abrogation of were the sole criterion, then nothing has to be done except moving the Article 370 in Kashmir - Pushkar Raj (9); The Stains on Indian Democracy: Human Rights court and waiting for its verdict. But the people in a democracy do not at Stake - Ritika Sharma (12); Violation of accept legality without legitimacy as a valid ground for an act which hurts Human Rights against the LGBTQA a sizable section of the people. When Indira Gandhi clamped the Community in India: Prejudice and emergency in 1975, she did not act in violation of the Constitution.Art.352 Discrimination against LGBTQA people - empowered the government to declare a state of emergency in the event Deepika Purohit (14); Conduct of Foreigners of there being 'internal disturbance' in the country. She had the required Tribunals in Assam is questionable - number in both houses of Parliament and followed the procedure as laid Prashanth Bhushan and Cheryl D'Souza (16); down in the constitution. The constitution empowered the President to Tribute: Why I feel a Sense of Loss for Ram suspend Art.19, 20 and 21* i.e. the right to life and personal liberty and all Jethmalani despite our Deep Ideological the civil liberties covered under those Articles. The apex court in a 4:1 Differences - Nandita Haksar (18) judgment (ADM Jabalpur v Shivakant Shukla, 1976) held that that a person had no legal remedy if his life or personal liberty were taken away by the State as the rights had ceased to exist following their suspension. PUCL Statement: Tabrez Ansari Lynching Whatever Indira Gandhi did during the emergency was constitutionally Murder case: Jharkhand PUCL (6); Press sound, but the people (including those in power today) rose against it Release: Stop the Mc-carthy style witch hunt because her act was morally reprehensible. It was legal but not of Academics and Human Rights Defenders! legitimate. Legality is not the sole basis of judging the acts of the State. It (8); Statement on Kashmir Women's must pass the test of legitimacy, which is outside the domain of courts. An Collective (10); PUCL Chhattisgarh: PUCL act of the State is legitimate or not depends on the feelings of the people Calls for Judicial Inquiry into the “Encounter” who suffer the consequences of the act. In this case, the people of of anti-mining activists of the Nandaraj Kashmir. movement (13); Update on Narmada case The claim that once a people have made a choice they must suffer the before the SC – NAPM Statement (17). consequences even if they later realise that it was a grave mistake may be legally sound but is morally unacceptable and illegitimate. When India Annual Subscription: PUCL Bulletin was partitioned in 1946-1947, the Muslims of East Bengal happily chose (w.e.f. January 01, 2017) INDIA to remain in Pakistan, which was going to be an Islamic State. Gradually, PUCL Members Rs. 200 they came to realise that they were reduced to the status of a second Non-Members Rs. 240 class citizen. Culturally Begalis were radically different from the Libraries, Institutions Rs. 300 Punjabis, Pathans, Baloch and Sindhis of West Pakistan. The West OVERSEAS PUCL Members US$50 Pakistanis, who were the real rulers, tried to suppress their language and Non-Members US$100 culture also. Within 20 to 25 years, their alienation was complete and Libraries, Institutions US$120 they rose against the betrayal of their trust. It led to a brutal military crackdown in 1971. Two to three million people in East Pakistan were killed and 2 to 3 lakh women were raped by the armed forces of their own country, who were also Muslims like them. Finally, India marched her armed forces to rescue them and defeated Pakistan's armed forces and took 90000 Pakistani Prisoners of War. India intervened on humanitarian grounds. The intervention was against

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PUCL BULLETIN, OCTOBER 2019 1 the international law, as the conflict found their disillusionment as an does not lie in doing what Pakistan was an internal matter of Pakistan. unpatriotic and anti-national act tried to do to the Bengalis of East The people had remained in and let their armed forces loose on Pakistan but to find a way to win the Pakistan of their own free will, but them to punish them. Kashmiris back. Abrogation of later felt compelled to revise their Who was at fault? The State which Art.370 and Art.35A is similar to the opinion and chose to opt out of treated a section of her own people Pakistani approach to East Pakistan. They welcomed even so badly as to alienate them Pakistan and not a step in the India's military intervention though completely or the people who felt direction of winning the Ksshmiris' they had considered India an alienated due to ill treatment. The hearts. enemy till a few years ago. government and the people of India It has to be kept in the mind that Thus, the Indian State had appreciated the feelings of the Jammu and Kashmir was not a part acknowledged the right of the people of East Pakistan (present of British India like other provinces people of East Pakistan to revise Bangla Desh) and even went to war (now called states) like Bihar, UP or their choice, to choose to secede with Pakistan for them. Bengal. When the British decided from their country and the right of a In 1947, the people of Jammu and to grant independence to India, the foreign country to militarily Kashmir were happy to choose to rulers of 600 plus Princely States/ intervene in a foreign country on be in India though a majority of Deshi Riyasat also wanted to be humanitarian consideration. The them were Muslims. The Muslims independent countries. Maharaja whole country was behind Indira chose to be in India and not Islamic Hari Singh of J & K had the choice Gandhi on her humanitarian Pakistan even though India was to accede to either India or Pakistan intervention. Her humanitarian overwhelmingly Hindu dominated or remain independent. He had intervention was absolutely illegal and had been an arena of countless signed a 'Stand Still Agreement ' but fully legitimate. She had done communal clashes. Kashmiris with both India and Pakistan. It was her best to persuade the world to created no, problem for India during a pledge that none of the two would acquiesce in her illegal but the war with Pakistan in 1947,1965 take any action against his l e g i t i m a t e h u m a n i t a r i a n and 1971.Terrorism raised its head kingdom. He was initially inclined to intervention. Even JP had visited in Punjab during the Khalistan join Pakistan, but Pakistan was not some important countries as India's movement in 1980s , but Kashmir prepared to make the concessions emissary to persuade their remained peaceful till 1980s he wanted. In October ,1947, governments to appreciate India's (barring one or two killings in 1989 - Pakistan invaded J & K employing decision. 1990). Pakistan had no foothold armed tribals backed by Pak army H e a l t h y a n d e n l i g h t e n e d and could not send its terrorists to (but not in uniform). It was in democracies accept the right of a India as it had no local support desperation that he turned to India people to secede if they are of the during the period. for help. India took the position that opinion that it is in their best Now, the situation is completely it could send its forces to J &K to interest. There are two recent changed. Kashmiris undoubtedly fight Pakistan only if it acceded to examples. Scotland of the United feel alienated. Who is responsible India and became part of India. Kingdom and Quebec, a French for the present situation? The rulers Maharaja Hari Singh's accession to Speaking province of Canada, of India ever since Kashmir's India was not unconditional, which were given the right to be accession or the people of necessitated a provision in the independent if the majority so Kashmir? The Most crucial constitution aimed at taking care of wanted. UK ordered a referendum question is whether it is the Indian his conditions in conformity with in 2014 and Canada in 1995.The State which is answerable for India's constitutional arrangement. people by a very slight margin (of alienating the Kashmiris or the It was envisaged that in course of less than 1% in Canada and 3% in Kashmiris for feeling alienated due time J & K would become a state of Scotland chose to remain in their to the treatment they received at India like the other states subject to respective countries. What is the hands of the Indian State. the consent of the people of remarkable is that neither the Prime It is indisputable in a democracy Kashmir. One of the ways to Minister of the U.K. and Canada nor that it is for the government to keep ascertain their consent to any new t h o s e w h o d e m a n d e d the people happy and not for the measure was to get the consent of independence in the two countries people to keep the government the Constituent Assembly of were called traitors or alleged to be happy. It is the right of the people to Kashmir. When the Constituent anti-national. change the government they are Assembly was dissolved, the State The people of East Bengal had unhappy with; the government has A s s e m b l y ' s c o n s e n t w a s joined Pakistan of their own free will no right to demand that the people considered sufficient. Art.370 was because they thought it was going should keep it happy. The root enshrined in the constitution to to be an Islamic paradise. Only a cause of the Kashmir problem is ensure a fair implementation of the few years later, they were that the government of India has provisions of the agreement thoroughly disillusioned. Their failed the Kashmiris as the between Maharaja Hari Singh and dream had turned into a horrifying government of Pakistan had failed the Government of India. nightmare. The West Pakistanis the East Pakistanis. The solution An agreement between two

PUCL BULLETIN, OCTOBER 2019 2 entities, specially if they are o f J a m m u a n d K a s h m i r Jabalpur v Shiva Kant Shukla. It friendly, has to be implemented notwithstanding anything contrary would be morally repugnant and honourably and in good faith. This contained in Art.152 or Art.308 or illegitimate and would further did not happen with Kashmir. any other Article of this Constitution alienate the people, who are bound Though the consent of the or any other provision of the to view it an evidence of India's Assembly was obtained from time Constitution of Jammu and judiciary being complicit in the act to time, due to rigged elections in Kashmir or any law, document, of betrayal of their trust. the state the Assembly did not judgment, ordinance, order, bye- India has to choose between represent the will of the people. law, rule, regulation, notification, undoing the abrogation of Art.370 Thus, the consent given to the custom, usage have the force of and suppression of Kashmiris in its measures proposed by the law in the territory of India or any aftermath or following Gen.Yahya government of India was legally other instrument ,treaty or Khan. The people also have to sound, but without the real consent agreement as envisaged under Art. decide whether they want to follow of the people. it lacked legitimacy 363 or otherwise". the people of West Pakistan, who and added to the alienation of the In short, now Art.370 has to be read cheered the mass murder of 20 to Kashmiris. as above having the meaning and 30 lakh of their own citizens and Abrogation of Art. 370 has been on intent to the very opposite of what rape of 2 to 3 lakh of their own the agenda of the RSS-BJP for a Art.370 was meant to protect and sisters. If we, as a people, do not long time. The massive majority achieve. rise against brutality against our they got at the 2019 elections The President has added one own citizens, we do not deserve the emboldened them to do it by hook clause 4 to Art.367, the Article love of Kashmiris and Kashmir or by crook and they have done it by meant to interpret the words in the even if we keep them by force. hook and by crook. They have not Constitution. This amendment has To deserve them, we must force the abrogated Art. 370 as it would have been made to replace the government to undo the abrogation required them to follow a time Constituent Assembly by the State and find ways to win back the taking procedure of constitutional Assembly since the Constituent hearts of Kashmiris. amendment under Art.368.The Assembly dissolved itself in 1956.A *Art.19 can be suspended under President has just declared that "as similar exercise has been done to Art.358 and the right to move the from 6th August 2019 all clauses of effect these changes even while court for the enforcement of the the said Article 370 shall cease to there is no State Assembly. other fundamental rights including be operative except the following Prima facie one of the biggest Art.20 and Art.21 under Art.359. which shall be read as under frauds has been played with the However, the Janata Party namely, country's constitution though it is g o v e r n m e n t a m e n d e d t h e "All provisions of this Constitution for the court to decide its constitution and provided that as amended from time to time , constitutionality. Even if the court Art.20 and 21 cannot be suspended without any modifications or upholds the abrogation, it will have under Art.359. q exceptions shall apply to the State the same legitimacy as ADM

'Criticism of Government, Army & Judiciary can't be construed as Sedition'1 Justice Deepak Gupta Justice PD Desai Memorial Lecture, Ahmedabad, 7th September, 2019 Speaking on 'Law of Sedition and we shall become a police state citizens do not have the right to Freedom of Expression' during a instead of a democracy.” think as they like, express their lawyers' workshop in Ahmedabad Speaking at a lawyers' workshop thoughts, have their own beliefs on Saturday, Justice Gupta organised by a charitable trust in and faith, and worship in a manner maintained that in the absence of Ahmedabad, Justice Gupta said which they feel like. dissent, democracy will ultimately that majoritarianism cannot be the The right of freedom of opinion and get replaced by a police state in the law and minority also has the right the right of freedom of conscience country to express its views. He slammed by themselves include the Supreme Court judge Justice the tendency to declare people as extremely important right to Deepak Gupta on Monday “anti-national” for holding a disagree. slammed law of sedition, stressing different point of view. He also Thus, the right to dissent is one of it is “misused” in view of the low criticised social media trolling, the most important rights conviction rate in such cases and maintaining that people were guaranteed by our Constitution. As needs to be re-examined. scared to express their views. long as a person does not break the “Criticism of the executive, the Here're major takeaways from law or encourage strife, he has a judiciary, bureaucracy, armed his speech on 'Law of Sedition right to differ from every other forces cannot be termed sedition,” and Freedom of Expression' citizen and those in power and Justice Gupta remarked. “If we Right to Dissent - There cannot be propagate what he believes is his stifle criticism of these institutions, any democratic polity where the belief.

PUCL BULLETIN, OCTOBER 2019 3 Every society has its own rules and Indian Penal Code (IPC) drafted by affection for the government and over a period of time when people Lord Macaulay, somehow this did merely because people have only stick to the age-old rules and not find its way into the IPC when it disaffection or strongly disagree conventions, society degenerates. was enacted in the year 1860. The with the views of the Government or New thinkers are born when they IPC was amended in the year 1898 express their disagreement in disagree with well accepted norms w h e n S e c t i o n 1 2 4 A w a s strong words, no sedition is made of society. If everybody follows the introduced. out unless they or their words well- trodden path, no new paths When Section 124A was first promote or incite or tend to promote will be created, no new explorations introduced, we were told that this or incite violence and endanger will be done and no new vistas will provision was not to curb legitimate public order. be found. If a person does not ask dissent but was to be used only However, in present times there is questions and does not raise when the writer or the speaker no healthy discussion but only issues questioning age-old directly or indirectly suggested or shouting and slanging matches, systems, no new systems would intended to produce the use of lamented Justice Gupta. If one develop and the horizons of the force. does not agree with another, that mind will not expand. Interestingly, another reason given p e r s o n b e c o m e s a n a n t i - Whether Buddha, Mahavira, Jesus was that there was a Wahabi nationalist. Christ, Prophet Mohammad, Guru conspiracy by a man who had There is no advocacy on principles Nanak Dev, Martin Luther, Kabir, preached Jihad or holy war against and issues. There are only shouting Raja Ram Mohan Roy, Swami Christians in India and therefore the a n d s l a n g i n g m a t c h e s . Dayanand Saraswati, Karl Marx or need to introduce such a provision. Unfortunately, the common refrain Mahatma Gandhi, new thoughts Though Section 124A was inserted is either you agree with me or you and religious practices would not for fear of Muslim preachers are my enemy, or worse, an enemy have been established, if they had advocating Jihad or religious war, it of the nation, an anti-nationalist. quietly submitted to the views of was initially used against Hindu The constitutional validity of t h e i r f o r e f a t h e r s a n d n o t leaders. The first such case was of Section 124A has to be read in the questioned the existing religious Jogendera Chunder Bose wherein context of Article 19 of the practices, beliefs and rituals. in a newspaper called Bangobasi, Constitution of India. Thus, In a secular country, every belief the Editor objected to the English advocating any new cause does not have to be religious. Even rulers raising the age of consent of h o w e v e r u n p o p u l a r o r atheists enjoy equal rights under sexual intercourse for Indian girls uncomfortable it may be to the the Constitution. Whether one is a from 10 to 12 years. powers that be, it must be believer, an agnostic or an atheist, Subsequently, the British used the permitted. one enjoys complete freedom of law of sedition to curb any demand Sedition can arise only against a belief and conscience under our for independence said Gupta citing government established by law. Constitution. There can be no the case of `Queen Empress v. Bal Government is an institution, a impediments on the aforesaid Gangadhar Tilak'. body and not a person. Criticism of rights except those permitted by the I would also like to refer to the persons cannot be equated with Constitution. Father of the nation Mahatma c r i t i c i s m o f t h e The judgment of HR Khanna, J. in Gandhi, who in this city of government….Criticism of senior A.D.M. Jabalpur case, is a shining Ahmedabad was charged with functionaries may amount to example of a dissent which is much sedition. Appearing before defamation for which they can take more valuable than the opinion of Sessions Judge Broomfield, action in accordance with law but the majority. This was a judgment Mahatma Gandhi while dealing this will definitely not amount to d e l i v e r e d b y a f e a r l e s s , with the word 'disaffection' had this sedition or creating disharmony. incorruptible Judge. Judges are to say: Police cannot deal with law and administered oath wherein they “ A f f e c t i o n c a n n o t b e order problems but have time for swear or affirm to perform the manufactured or regulated by sedition duties to the best of their ability law. If one has no affection for a Majoritarianism can't be law without fear or favour, affection or ill person or system, one should D u r i n g t h e d a r k d a y s o f will. First and foremost part of the be free to give the fullest Emergency, an attempt was made duty is to do one's duty without fear. expression to his disaffection, by one party President to equate Law of sedition - It was enacted at so long as he does not his leader with the country. I am a time when India was ruled by a contemplate, promote or incite sure that no one will ever try in foreign imperialist colonizing to violence.” future to equate a personality with power. The British brooked no I think this brilliantly sums up what I this country of ours which is much opposition and did not want to listen want to say today that mere bigger than any individual. to any criticism. Their sole aim was criticism without incitement to A majority government does not to deprive the people of this country violence would not amount to mean that minority voices should of their rights including the right to sedition. However, the Mahatma not be heard. Majoritarianism express their views. was sentenced to undergo cannot be the law. Even the Interestingly, though sedition was imprisonment for 6 years. minority has the right to express its an offence in the first draft of the You cannot force people to have views. We must also remember

PUCL BULLETIN, OCTOBER 2019 4 that in India we follow the first past heart to have respect for the same. criticism, will there be an the post principle. Besides, he also How does one judge what is inside improvement. Not only should stated that even Governments a person's mind or in his heart? there be criticism but there must be which come in with a huge majority In Chhattisgarh, a 53 years old man introspection. When we introspect, do not get 50% of the votes. was arrested on charges of sedition we will find that many decisions Therefore, though they are entitled for allegedly spreading rumours taken by us need to be corrected. to govern or be called as majority, it over social media about power cuts Criticism of the executive, the cannot be said that they represent in the State. It was said that this was judiciary, the bureaucracy or the the voice of all the people. done to tarnish the image of the Armed Forces cannot be termed The police always claim to be short then Government running the sedition. In case we attempt to stifle of forces when questioned about State. The charge was absurd and criticism of the institutions whether the adverse law and order situation again highlights the misuse of it be the legislature, the executive in various parts of the country. power. In Manipur, a journalist or the judiciary or other bodies of Trials in criminal cases of rape, made a vituperative attack on the the State, we shall become a police murder and crimes falling under Chief Minister of the State and used State instead of a democracy and POCSO carry on for years on end totally unparliamentary language this the founding fathers never because police officials do not have against the Prime Minister of the expected this country to be. time to even depose before the country. The language was Section 66A of the IT Act, which put courts but when it comes to sedition intemperate and uncalled for but restrictions on the freedom of or Section 153A or implementing this was not a case of sedition. expression in an online space, is the provisions of Section 66A of the Criticism of government by itself still being used by the lower Information Technology Act (which cannot amount to sedition. India is judiciary and the police, even after h a s b e e n d e c l a r e d a powerful nation, loved by its being struck down in the Shreya unconstitutional), there seems to citizens. We are proud to be Singhal case. be no shortage of manpower and Indians. We, however, have the It does not speak well of the Indian the police acts with great alacrity. right to criticise the Government. judiciary that the magistrates are It is, thus, clear that there is one set Criticism of the Government by unaware of the law of land, and day of rules for the rich and the powerful itself cannot amount to sedition. In in and day out, we hear of and another set of rules for the a country which is governed by the magistrates granting judicial ordinary citizens of the country. In a rule of law and which guarantees custody or police remand in relation country which professes to live by freedom of speech, expression and to such offences. rule of law, this cannot be belief to its citizens, the misuse of Cyber bullying - The recent trends permitted. the law of sedition and other similar have instilled fear in people when it Thus, the law of sedition is more laws is against the very spirit of comes to expressing their opinions often abused and misused and the freedom for which the freedom on criticising governments in people who criticise those in power fighters fought and gave up their power. A very important aspect of a are arrested by police officials on lives. democracy is that the citizens the asking of those in power and The shoulders of those in power should have no fear of the even if a person may get bail the who govern should be broad government. They should not be next day from the court, he has enough to accept criticism. Their scared of expressing views which suffered the ignominy of being sent thinking should be wide enough to may not be liked by those in power. to jail. The manner in which the accept the fact that there can be No doubt, the views must be provisions of Section 124A are another point of view. Criticism of expressed in a civilised manner being misused, begs the question the policies of the government is without inciting violence but a mere as to whether we should have a not sedition unless there is a call for expression of such views cannot be relook at it. Freedom of expression public disorder or incitement to a crime and should not be held being a constitutional right must get violence. The people in power must against the citizens. primacy over laws of sedition. develop thick skins. They cannot be No doubt, the views must be Sedition is a crime only when there oversensitive to people who make expressed in a civilised manner is an incitement to violence or fun of them. In a free country, without inciting violence but a mere public disorder. people have a right to express their expression of such views cannot be But the law as laid down in Kedar views. a crime and should not be held Nath Singh's case regarding Everybody may not use temperate against the citizens. The world sedition is not being followed. o r c i v i l i s e d l a n g u a g e . I f would be a much better place to 'Right to criticise government' intemperate, uncivilised and live, if people could express their I think our country, our Constitution defamatory language is used, then opinions fearlessly without being and our national emblems are the remedy is to file proceedings for scared of prosecutions or trolling on strong enough to stand on their own defamation but not prosecute the social media. It is indeed sad that shoulders without the aid of the law persons for sedition or creating one of our celebrities had to of sedition. You may force or disharmony. withdraw from social media compel a person to stand while the Judiciary not above criticism - In because he and his family National Anthem is being sung, but fact, I welcome criticism of the m e m b e r s w e r e t r o l l e d o r you cannot compel him within his judiciary because only if there is threatened of dire consequences.

PUCL BULLETIN, OCTOBER 2019 5 The world would be a much better less an Indian, less a patriot than Where the world has not place to live, if people could any of his contemporaries. Merely b e e n b r o k e n u p i n t o express their opinions fearlessly because a person does not agree fragments w i t h o u t b e i n g s c a r e d o f with the Government in power or is By narrow domestic walls prosecutions or trolling on social virulently critical of the Government Where words come out from media. in power, does not make him any the depth of truth It is indeed sad that one of our less a patriot than those in power. In Where tireless striving celebrities had to withdraw from today's world, if any person was to stretches its arms towards social media because he and his say ―nationalism is a great perfection family members were trolled or menace - he may well be charged Where the clear stream of threatened of dire consequences. with sedition. reason has not lost its way 'Nationalism is a great menace' - If this country is to progress not only Into the dreary deserts and Gurudev Rabindra Nath Tagore in the field of commerce and of dead habit had a view on nationalism, which is industry but to progress in the field Where the mind is led the anti-thesis of the view which of human rights and be a shining forward by thee many of us have. He, in fact, had example of an effective, vibrant Into ever-widening thought not appreciated the Satyagrah democracy then the voice of the and action movement. He, who wrote the people can never be stifled. I can do Into that heaven of freedom, National Anthem also held the view no better than quote the words of my Father, let my country that ―nationalism is a great Gurudev Rabindra Nath Tagore: awake” 1 menace. I do not agree with those “Where the mind is without https://theleaflet.in/justice-deepak- views nor did eminent leaders of fear and the head is held high gupta-criticism-of-government-army- judiciary-cant-be-construed-as-sedition/ that time but this did not make Where knowledge is free th Gurudev Rabindra Nath Tagore @ September 8 , 2019 q

PUCL Statement: 15th September, 2019 Tabrez Ansari Lynching Murder case: Jharkhand Restore Murder charge u/ sec. 302 IPC in Charge Sheet! Prosecute police officials & murder, fully video taped by the finally died on 22 June, due to the doctors for criminal negligence, assailants. What makes the police injuries inflicted on him. The screening true offenders and action suspect and suspicious is religious motivations behind this tampering with evidence. the fact that Jharkhand will soon crime are laid bare in the gruesome PUCL strongly condemns the have state elections and it is not in videos that was taken by the actions of the Jharkhand police in the interest of the ruling BJP assailants which have been widely dropping murder charges u/s 302 government if the criminal circulated on social media. IPC from the charge sheet of the prosecution of Tabrez Ansari's The family members of Tabrez who case related to the brutal lynching killers is pursued as a murder case. visited him while he was in the murder of Tabrez Ansari and To recall the facts, on 17th June Saraikela police station found him replacing it with a much more 2019, in Dhatkidih village, severely injured and bleeding, but diluted charge u/s 304 IPC, Kharsawan block, Saraikela when they requested the police (culpable homicide not amounting Kharsawan district, Jharkhand, officials to take him to the hospital to murder). Tabrez Ansari and two fourteen they were refused. The threats of PUCL also strongly deprecates the year old boys -Md Irfan and Numer violence were made by the officials justification offered by the SP of the A l i - w e r e r e t u r n i n g f r o m and refusal to provide timely Saraikela – Kharsawan District, Jamshedpur when they were medical assistance indicated both Jharkhand, that they decided to surrounded by a mob in Dhaktidih their complicity in the murder and drop murder charges because village and beaten up brutally. their intention to screen the real Tabrez did not die on the spot, While Irfan and Numer escaped, offenders to escape criminal which according to him indicated Tabrez was caught by residents of liability for their murderous action. that the intention of the mob was the village, tied to a pole, forced to Tragically, Tabrez was finally taken not to kill Tabrez, and because the chant “Jai Shri Ram” and “Jai to the Saraikela Sadar Hospital post mortem report stated that Hanuman” and barbarically only after his condition worsened Tabrez died 4 days after the assaulted. The police were on 22 June, 5 days after the incident due to `cardiac arrest and informed but failed to come to assault. head injury', as not just a motivated rescue him from the mob, who beat The young, 22-year old Tabrez interpretation meant to screen cold him continuously for over six hours. Ansari's family lived in Kadamdiha blooded killing by right wing Despite the brutality and injuries village of Kharsawan block. Both Hindutva fanatics, but also an inflicted on him, the police that his parents had passed away and attempt to tamper with the criminal arrived on the spot, arrested Tabrez he lived with his paternal uncles case with the intention to let the and took him to Saraikela police and their families. Tabrez worked accused escape conviction for station where he was kept for days as a welder in Pune, and would visit what is a cold blooded lynching without any medical assistance. He his home once in a while. He got

PUCL BULLETIN, OCTOBER 2019 6 married a month and a half before Tabrez Ansari, 24, "did not take the Assistant Professors and 2 Tutors1. the incident on 17th June, 2019, and matter seriously", concluded the It is therefore hard to avoid the was scheduled to return to Pune inquiry panel. impression that the HOD and other the day after the incident took With regard to the medical opinion, faculty members of the Forensic place, with his newly wedded wife. several serious infirmities needs to Medicine department were There has clearly been gross and be pointed out. deliberately side-lined by the wilful culpable inaction on the part First, there was only one post police. Second opinions, especially of the police officials of PS mortem. The second report, signed in such a vital case as this, is Seraikela that led to the death of by 5 so called 'experts', only issued usually obtained from persons Tabrez. Worse, there has been an the statement based on previous more qualified or more experienced attempt by the police to change the papers. They have not conducted than the person who issued the first narrative by attributing the cause of an independent post mortem! And, certificate. That this simple d e a t h t o h e a r t a t t a c k o r therefore, it is not credible. The first principle is flouted in this case is a consumption of poison thereby report did not mention a] the serious issue on the part of the diluting the case. amount of blood in the cranium and Investigating Officer and higher The post-mortem report filed with b] it does not mention Cardiac police officials who form part of the the preliminary charge sheet Arrest. `Chain of Command', including the clearly shows that there was The first PM [the only PM] Superintendent of Police, Saraikela hemorrhage in his brain and certificate that is in circulation does Kharsawan District. internal bleeding. It states that the not contain the Signature and the Analysis of the medical details: cause of injury that caused his designation of the doctor who An amount of 02 to 03 ml of death was a 'hard blunt object with conducted the post mortem. Even subarachnoid blood is mentioned in force'. today in many taluk and district the second report. It is not clear However, on 12th September, hospitals, PM is done by doctors where they got this amount. It is not NDTV reported, that a medico-legal w h o h a v e n o s p e c i a l i s e d mentioned in the first report. Such a document signed by five heads of qualification in Forensic Medicine. small amount is impossible to department of a medical college in However, in sensitive cases, like m e a s u r e i n t h e n o r m a l Jamshedpur stated that Tabrez custodial deaths etc, the body is circumstances. In any case, died of cardiac arrest caused by the always moved to a medical college forensic specialists confirm the combined effect of the severe where a qualified Forensic Dept is amount of blood does not matter. If trauma that he received. always available. It is a MCI norm the brain is injured and caused The news report stated that the and no medical college can exist bleeding that is enough to indicate document signed by five doctors without a Forensic Department with the severity of damage. The size said, "The fracture of bone is a Professor and couple of Asst and dimension of the fronto - grievous injury caused by hard and Professors, Tutors etc. Tabrez parietal fracture is not mentioned at blunt object. The combined effect of Ansari's case can qualify to be a all. fracture of bone, pale organs and custodial death or at least a T h e f i r s t r e p o r t m e n t i o n s heart chambers full of blood sensational case and it is not clear "Discharge present in B/L nostrils”. resulting into cardiac arrest". why his Post Mortem was not The discharge can only be bloody Despite this, the Jharkhand Police conducted by a qualified forensic because watery discharge or have removed murder charges professional in a Medical College is mucous will not be present so many against 11 people who attacked an important question. hours after that and they will not be Tabrez simply because the post- The certificate from the MGM important to be noted as a finding. It mortem report said he died of a Medical College is even more must have been clotted blood in the cardiac arrest. But the police did not curious. If one looks at those five nostrils. Bilateral nasal bleeding is give any reference to the reason - doctors who have signed, it is not necessarily one of the injuries from the beating - that led to obvious that none of them is a indication of serious brain injury. the cardiac arrest. qualified Forensic specialist. The The first thing that any experienced The accused have now been H O D s o f O r t h o , S u r g e r y, doctor checks is to check if the charged under Section 304 of the Pathology, Medicine and ENT patients is bleeding from ENT Indian Penal Code for culpable signed the certificate; these areas in case of injuries. If so, that is homicide, rather than murder under subjects have nothing to do with an indication of the need to have a Section 302 of the IPC. The Forensic Science. What is both CT scan of the head. punishment for culpable homicide intriguing and suspicious is about It should also be mentioned that the is between 10 years to life, while why the HOD or other faculty "Medical Certificate of Cause of that of murder is life imprisonment members of the Forensic Medicine Death" {Form 4 and 4A] which or death. Department of the MGM Medical doctors fill up after death is uniform This goes against the opinion of an College were not consulted or across the country. It clearly forbids enquiry by senior officials of the involved with this team. mentioning of heart failure as the Jharkhand government that Tabrez It is important to point out that MGM immediate cause of death. What is died due to the negligence of police Medical College has a full fledged important is to note as to what officials and lapses on the part of Forensic Medicine Department circumstances and causes led to doctors. Police officials arrived too with a Professor level – HOD, Dr. the heart failure. late and the doctor who treated Lalan Choudhury, assisted by 2 The human skull bone is quite

PUCL BULLETIN, OCTOBER 2019 7 strong. To quote an article: “Human Or he would have complained and public officials to help guilty bone is incredibly sturdy; it is the doctors did not care to record it. accused to escape criminal stronger than steel and concrete of A whole body CT scan is certainly liability for their actions of the same mass". Quoting from a mandatory in such patients not to murder, hate crime and other study, it has been pointed out that miss any brain, thoracic, abdominal offences. roughly 235 kg [520 pounds] or and pelvic injuries. 3. Under the circumstances 2300 Newtons of force is required The most likely scenario is that the where senior officials in charge to crush the human skull, “almost brain gradually swells due to of ensuring fair, independent twice as much force as human repeated injuries and causes what and unbiased investigation h a n d s c a n p o s s i b l y is called Diffuse Cerebral Odema or have been found to have muster".[https://www.sciencealert.com/ga Diffuse Axonal Injury. The brain compromised their authority me-of-thrones-exposed-the-science-of- cannot swell because it is within the and position, it is of great skull-crushing] The point is the skull rigid skull and hence pushes itself importance to instill confidence bone is very strong and requires down ["Herniation"] and thus the in the minds of victims families great force to break it. In the Tabrez vital centres like the Cardiac and that the trial be transferred out Ansari lynching case, it is only R e s p i r a t o r y C e n t r e s a r e of the district and to be under because such great force was irreversibly damaged and the heart the direct supervision of a applied by the mob assaulting and and lungs stop function. In other senior police official. beating him with iron rods and words, the so-called Cardiac Arrest 4. The victim's families should be sticks, it is difficult to conclude that is the consequence of brain injury allowed to have a say in the the mob did not intend for the man and irreversible damage of Cardio- selection and appointment of to be killed. Respiratory Centres in the brain. P u b l i c P r o s e c u t o r w i t h This intention by the mob is also It will be useful to point out to he adequate seniority, standing corroborated by Ansari's uncle opinion of Retired Prof and Head of and experience in handling Mohammad Masroor Alam, who the Dept of Vascular Surgery, criminal trials to handle the rushed to the spot on hearing about Madras Medical College, Dr case of the prosecution in the the assault, recorded this A m a l o r p a v a n a t h a n , w h o trial court. statement: He heard a member of concludes that 'It is very clear that Ravi Kiran Jain, National the mob shout, “Itna maaro ki mar this young person who was President, PUCL; Dr. V. Suresh, jaye (Beat him so much that he otherwise health and normal was National General Secretary, PUCL dies).” beaten so severely that he cracked 1https://www.mgmmedicalcollege.org/i It is quite possible for a person with his skull and bled inside his brain n d e x . p h p / a c a d e m i c / f a c u l t y - brain injury to be walking and and resulted in his death. In short, directory.html @ 14.9.2019 talking subsequent to serious brain Note: A week or so after dropping the murder he was beaten to death'. charges u/s 302 IPC, media reports injury and die later. This is called PUCL demands that: indicated that the Jharkhand police had "Lucid Interval" or “Talk and Die 1. The Jharkhand police restore decided to re-invoke Sec. 302 IPC murder patients" So death after more than and add again Sec. 302 IPC charges. While this is a welcome correction, 4 days of head injury is not unusual. what matters is that the police, families of Charge to the charge sheet. victims and local human rights activists This person had been beaten by a 2. The police officials and remain vigilant during the time of the trial to mob for several hours. It is a callous concerned doctor(s) be ensure that a fair trial is conducted, proper neglect not to have examined him immediately placed under evidence is led and justice is done by meticulously. Head injury patients ensuring the true perpetrators of Tabrez suspension and prosecuted for Ansari's killings are punished and convicted. can be confused and drowsy and tampering with evidence and q one should not expect them to attempt to cover up the crime complain of headache in all cases. by mis-using their position as

PUCL Press Release: 10th September.2019 Stop the Mc-carthy style witch hunt of Academics and Human Rights Defenders!

The People's Union for Civil questioning anti-democratic comprised of DCP Crime Branch Liberties (PUCL) condemns the actions of the government in the Bachchan Singh, ACP Shivaji raid on DU professor, Dr Hany Bhima Koregaon case continues Pawar, cyber experts, the UP Babu's residence in Noida, Delhi, unabated. Police from Sector 49 led by the by the Pune police earlier today (10 The latest incident occurred today, SSP of Gautambudh Nagar. ACP September 2019). in the morning of 10 September Shivaji Pawar claimed to be the The unending trial of democracy 2019 when the house of Dr. Hany Investigating Officer of Bhima- and unremitting assault on the Babu was raided by a contingent of Koregaon case. They searched the Constitution and rule of law, in the Pune Police between 6:30 am and entire house and took away all name of Bhima-Koregaon, and the 12:30. As Dr. Hany Babu lives in electronic devices, laptops, pen McCarthy-style With-hunt and Noida, the Pune contingent was drives, mobile phone, etc., victimisation of constitutionally accompanied by the local UP police belonging to Prof Babu. They even minded academics and citizens as well. The raiding team was seized the documents related to his

PUCL BULLETIN, OCTOBER 2019 8 everyday teaching, such as student the Pune / Maharashtra police. of the state, blatantly trample on the assignments, timetable, etc.. Dr. Babu has been with the English constitutional rights of citizens, and Furthermore, they locked him out of Department of the University of amount to state terrorism. Nothing his email and other internet Delhi for more than a decade. He else can be deduced from such facilities. has been actively campaigning for arbitrary raids in the name of It is significant that no search the release of Dr G N Saibaba. It investigating Bhima-Koregaon warrant was produced by the police may be recalled that the deeply incident. Dr. Babu has absolutely when they raided Dr Babu's house. controversial arrest of Dr Saibaba no connection with Elgaar On being asked by Dr Babu about was preceded by a similar set of Parishad. The main accused the legality of the raid, the police illegal and intimidatory actions. belonging to the saffron brigade, retorted that they did not need to Dr Babu is also a prominent social Sambhaji Bhide and Milind Ekbote, explain their actions to him. At the justice activist academic of Delhi against whom there was a clear time of the search Dr Babu's wife University. He has raised many indictment by the initial inquiry and child were present in the issues pertaining to Dalits, other conducted by the Pune Rural house. The police, including the UP socially marginalised groups and Police itself, are roaming free. police were very intimidating, and minorities in the University. Dr. Thanks to misuse of police compelled Dr Babu to permit this Babu has been actively fighting for machinery, which is distressingly illegal search of his home. the implementation of reservations compromised under the BJP-RSS According to the statement issued of SC/St and OBC students for a led government in Maharashtra, by the Pune police, “the search was long time. He has also been active the organisers of the peaceful conducted …under Section 153(A), in the teachers' struggles against meeting were targeted and one of 505 (1)(B), 117, 120 (B), 121, 121 the privatisation of higher them arrested. This so-called (A), 124 (A), 34 IPC and Section 13, education. To enable his work in investigation has instead, taken 16, 17, 18, 18 (B), 20, 38, 39, and social justice, he even completed a turned into a witch hunt in which 40 UAPA 1967”. The range of degree in Law from the University many human rights defenders, charges, and the nature of the of Delhi. from all parts of the country, have material seized (material on the What is shocking is that the police been gradually turned into Defence Committee for the officials seized the phones of Dr. "accused" or “suspects” in the Release of Dr G N Saibaba, of Babu's family members to prevent Bhima-Koregaon case, and have which he is a member) suggest that them from calling their lawyers and been peremptorily arrested and are the state is on a fishing expedition, friends throughout the grueling 6 now languishing in prison. and hopes to incriminate Dr Babu hours of the raid. PUCL strongly Ravi Kiran Jain, National one way or the other. The aim is condemns such blatant abuse of President, PUCL; Dr. V. Suresh, also to send a chilling warning to law and high handed action of the National General Secretary, PUCL others who may want to question Pune police. q the arbitrary and vindictive action of Such actions and tactics on the part Fallout of Abrogation of Article 370 in Kashmir Pushkar Raj* The Indian government's decision government's jurisdiction, but for a constitutional democracy is like to abrogate Article 370 of the the reason that the said article itself committing daylight robbery on constitution and revoke Jammu defined the terms of its demise, people's rights. and Kashmir's special status has p r o v i d i n g t h a t s u c h a Article 370 was an important significant implications for rule of recommendation must come from element of the constitution, serving law, federalism and secularism in the Constituent Assembly, later as an extension of the principle of the country while the road to peace replaced by the words “legislative federalism that provides for division in the state remains unpaved. assembly” by a government order of powers between the central The government of India with a in 1952, makes it untenable. The government and the states under presidential reference abrogated recommendations of such a Part IX of the charter. Reducing a Article 370 of the constitution that change must come from the state to a status of a union territory had given special status to the state legislative assembly of the state, and usurping its powers through an under its annexation agreement which was recently dissolved. But executive order is a strike at the with India in 1947. Under the article the government decided to bestow federal character of India, which the state had its own constitution, all the powers of the assembly on to according to Article 1(a) of the flag and assembly to guard its an unrepresentative governor, constitution “shall be a union of autonomy, but now it will be empowering him to recommend to states.” This must ring an alarm in governed from New Delhi. the president that he issue an order many northeastern states that Rule of law and federalism effecting the change. This is share a similar relationship with the damaged stretching the rule of law to a farce, union of India as Jammu and On its face, it seems within the and an action on such a premise in Kashmir did. PUCL BULLETIN, OCTOBER 2019 9 Assault on civil liberties and government's action, the Kashmir development of the region that secularism Valley is extremely resentful amid would provide employment to In the aftermath of the decision, the reports of protests and curfews y o u t h , m e a n i n g t h a t t h e government has taken tough revealing religious polarization in government intends to gain support security measures in Kashmir. The the state, as Jammu and Ladakh of the people and fight militancy, Internet was shut down, paralyzing have majorities of Hindus and weaning people away from communication. People are Buddhists while Kashmir is nearly radicalization. This could have experiencing serious civil - liberty all Muslim. This is bad news for been possible in a secular India restrictions on treatment in secularism in the country as where rule of law was sacrosanct, hospitals, education schools and Jammu and Kashmir, a Muslim- but in today's highly communalized communicating with their loved majority state, co-existed with India, it does not hold much ones. More than 3,000 people are majority-Hindu India under the potential. It is noticeable that in custody and police are assurance of secularism under Islamic radicalization in Kashmir is monitoring streets. It is a state of which it felt protected. That closely linked to the rise of Hindu emergency asphyxiating more than protection, however, now formally fanaticism in Indian polity and 7 million people and all seems to be seems withdrawn, at the same time governance. It is unrealistic to wish happening lawfully. On the unnerving about 170 million one away while stoking the other, contrary, people should worry that Muslims in the rest of the country as manifested in unabated lynching what goes on in Kashmir today can who feel threatened by a of Muslims in the country and happen in any part of the country communalized atmosphere. acquittals of the accused. tomorrow. On a positive side, the move has The government has embarked on In the name of fighting terrorism in benefited tens of thousands of a military solution to the Kashmir Kashmir, the government has Pakistani refugees and scheduled issue. The repression, however, acquired extraordinary powers, castes who had been deprived of will lead it to a long-drawn battle including powers to declare an basic human rights like voting and with people's protests and employment in government and militancy. With Pakistan extending individual a terrorist. This is could not buy or sell property political support and the Taliban bizarre, as any intellectual could be despite being in the state for more freed from their battle to oust the dubbed an “Urban Naxal” and be than 70 years. The political Americans from Afghanistan, called anti-national and linked with leadership of the Kashmir Valley Kashmir is far from seeing the light terrorism. Given the government's failed to rise to the expectations of of peace any time soon. grip on social and electronic media these marginalized people. Link: https://www.asiatimes.com/ and the status of the police, it is a Besides, more than 500,000 2 0 1 9 / 0 9 / o p i n i o n / f a l l o u t - f r o m - hammer in the hands of a Kashmiri Pandits too may nurse a abrogation-of-article-370-in-kashmir/ majoritarian-mindset government hope now to reconnect with their *Pushkar Raj is a researcher and author to crush any dissent in a pluralist motherland. based in Melbourne. Formerly he taught country needing no formal No easy road to peace Political Science in Delhi University and was declaration of civil emergency. The government's argument is that the National General Secretary of the People's Union for Civil Liberties (PUCL). q While the regions of Jammu and it has taken this step for Ladakh have welcomed the Statement on Kashmir Women's Collective We, the members of Kashmir incarcerated, along with a number the state to a UT would not have Women's Collective, condemn the of civilians. The atmosphere of been taken. unilateral political decision taken by scare is being created so that the Landlines, which were restored the Government of India on demand for rights is repressed. after a few weeks of absolute abrogation of Article 370 that bore On 4th August 2019, amidst the communication blockade, are not witness to Kashmir's being a c h a o s , c o n f u s i o n , a n d available to all. People are queuing political conflict. More so the speculations, the people were up in makeshift telephone booths to repressive and autocratic ways in urged by the Governor not to make calls to loved ones who are which it was executed is believe any rumors. The rumors away with international calling still condemnable as well. turned true, and the words of not available on landlines. The Kashmir continues to bear the consolation proved to be empty. reports about detentions and weight of this decision. It is the 47th Uncertainty marks the daily lives as torture are also disturbing and day of communication blockade. well as the future of Kashmiri g r a v e . We a r e e s p e c i a l l y There's a heavy presence of armed people. We worry for the future of concerned about the children being personnel on the ground. Political Kashmiri youth. And if the Indian detained and the conditions they activists, party workers, who government did too, this unilateral are being put in, which includes believed in India and those who had move to abrogate article 370 and lodging them in jails outside of differences with it, both are 35A and downgrading that status of Kashmir.

PUCL BULLETIN, OCTOBER 2019 10 Kashmiris are paying a heavy price; humanitarian network of women, only multiplying horrors of women many households are starving, the want to register our protest and who are already living in abusive economy is hitting the bottom, anger against this move being marriages. access to health care is getting Kashmiris and at the same time A woman with 90% burns from hard, the justice systems are not being women. Kupwara has been brought to functioning and above all, it is also Every situation has a gender SMHS hospital, with her parental affecting the psychological well- component which may or may not family emphasizing that her in-laws being of people. We want to be visible or recognized. The burnt her down for dowry, informed reiterate, that all these are not signs situation of clampdown is a fellow activist who asked us for of normalcy, not even close to additionally challenging for women W o m e n ' s c o m m i s s i o n normalcy. People have no other who have to face multiple layers of chairperson's phone number - way to register their protest on such discrimination in terms of access. which wasn't working, like all other draconian move. One of our members got a call from numbers. Desperate attempts of some a woman victim who was calling These examples only highlight how people to prove that everything is from an SHO's number, saying that the current situation is further normal in Kashmir because a few her husband, a cheater and an exacerbating the existing violence vehicles are seen plying in some abuser, was flying abroad and she against women, not to mention the videos or some people are seen has no means to stop him. And if he reports of rapes, molestations, and selling merchandise is only a flies out, her and her two children torture of women by armed forces, misrepresentation of people's pain w i l l b e l e f t u n c a r e d f o r, during cordons, searches and and need. Even when life will limp economically and emotionally. repressive crackdowns which are back to people attending offices or Also, this man has secretly married rampant in such situation. phonelines resuming, how can that abroad. The woman had frantically No one would even be thinking of be interpreted as 'acceptance' of tried every KWC member's number young girls and women who would this humiliating move? and got through one who was not in have no access to sanitary napkins Majority people are angry, dejected Kashmir. Our member could not do in these weeks. Firstly, the shops and aghast as a feeling of being much from far and requested the are closed and secondly, the robbed of the last remnants of an SHO to intervene whose phone stigma attached to periods won't let identity runs deep. And normal life was being used to make the call. girls ask men of the family about isn't being resumed also because Women have a very tricky their personal needs like such as phone and internet isn't in place, relationship with state institutions in was highlighted by a Kashmir t h o u s a n d s o f p e o p l e a r e conflict. Many a time, these woman in her tweet while incarcerated and hundreds institutions are violators yet they recollecting her experiences of detained, armed forces are visible are also the only systems in place living in Kashmir during 90s. The and repression is real. The situation that have any redressal for women. cases of infection and disease is far complex that what is The woman had been pushed to an would certainly go up. Various portrayed to benefit the narrative extreme level of desperation news reports have highlighted binary of 'generous state and wherein she had to navigate her instances of expecting mothers terrible terrorists.' way to reach us out, facing having to go through extreme Apart from violating basic human violations at the hands of her hardships in reaching hospitals, r i g h t s o f K a s h m i r i s , s u c h partner as well as the state. Under having to walk several kilometres clampdown is also against many normal circumstances, her on foot. At least one death of a new international conventions ratified struggles would not have been so born was reported because the by India (International Covenant on gruelling and agonizing. doctor could not be contacted. If Economic, Social and Cultural Another victim of violence who has this does not signify the breakdown Rights, International Covenant on been receiving assistance from of healthcare, what else does? We Civil and Political Rights and KWC for the past few months was refuse to accept these cases as particularly about women and beaten in the dead of night and collaterals. children, Convention on the thrown out of her home. She went Locked down like cattle at homes, Elimination of all Forms of to one of our member's home, oscillating between a possibility of Discrimination Against Women, passing through militarized roads in war between India and Pakistan Convention on the Rights of the the night, being stopped, every and an increased militant Child etc). The prevailing situation minute. Living there for a week, movement, people in the position of in the valley visa-via human rights she's now housed at our two-room power seem unbothered about the (arbitrary detentions, torture, office in Rajbagh. Her husband physical, emotional and mental shortage of supplies etc) is being while beating her had said, "how health of Kashmiris. well documented by activists and will you call your women's group We, in our tiniest attempts, are some media outlets too - national now, who will come to your making ourselves available to and international with local media rescue?” women at our office in Rajbagh. We operating in a limited capacity. Not having access to phone, public may not be able to reach out as Ours being a non-political, transport and public institutions is actively as we have been doing in

PUCL BULLETIN, OCTOBER 2019 11 the past but we can try our best to In the meantime, we can only try s t a r v a t i o n , d i s e a s e , a n d intervene in case wherever and stand together for each other in depression. We urge India, required. We reiterate that ours is a solidarity with the hope that Pakistan and International humanitarian work and we are not international community's rhetoric community to engage with associated with any interest group. translates into action, taking on Kashmiris with a sincere attempt to We have been able to put this board Kashmiris, such that the resolve the Kashmir's political statement together as some of our paralyzed life in Kashmir is matter once for all. q members met outside of Kashmir. transformed to prevent further

The Stains on Indian Democracy: Human Rights at Stake Ritika Sharma* (Abridged from the Research Paper written by RITIKA SHARMA*) There is an analysis of the situation the situation. The then government the “soul of Constitution”. About which has violated the very basis of was in serious conflict with judiciary one lakh people were detained and our democracy which claims to be as well which pertained to the press censorship prevailed. The the world's largest democracy. amendment powers of the popular newspaper “The Indian Democracy is the form of P a r l i a m e n t . H e n c e , i n Express” left its editorial blank to governance in which supreme Kesavananda Bharti Case, the protest. George Fernandes power is vested in people itself and Supreme Court ruled that became anti-emergency crusader. hence they directly or indirectly Parliament cannot amend the Mrs. Gandhi called for “committed elect their own representative to “basic structure” of the Indian j u d i c i a r y ” a n d “ c o m m i t t e d f o r m a r e s p o n s i b l e a n d C o n s t i t u t i o n w h i c h l e d t o bureaucracy”. In A.D.M Jabalpur v. accountable government. There d i s a p p o i n t m e n t f o r t h e Shivkant Shukla case, the majority have been many circumstances government. A major upheaval bench ruled that Fundamental which have proved to be stains on occurred in Gujarat and Bihar in Rights can be suspended during Indian democracy. Politics is 1974 due to popular anger over Emergency of which H.R. Khanna indeed an essential part of a increasing corruption. It led to was the only dissenter and later democratic structure but it should nationwide student's movement, paid the price for the same when he rather be healthy than being The main feature of Bihar was superseded by M.H. Beg as erosive. It was rightly said by Lord movement was the call for “total CJI' Acton, “Power tends to corrupt and revolution” which was made under Operation Blue Star was a a b s o l u t e p o w e r c o r r u p t s the leadership of Jayaprakash codename of an Indian military absolutely”. Similar has happened Narayan. operation carried out in June 1984 in Indian scenario where the The most triggering event took to apprehend militants from the government has misused its power place when Raj Narain[1]alleged Golden Temple in Amritsar in from time to time. The draconian Indira Gandhi of bribery and using Punjab and to combat the rise of laws, corrupt media and self- g o v e r n m e n t m a c h i n e r y t o militancy but excesses were centered government have actually manipulate the election. She was spread more than actual aim. False destroyed the path of development, found guilty and was barred by encounters were made and killed making people question, “Is India Allahabad High Court to participate many innocents The Green truly a democratic nation?” in any decision making process. On Revolution had already brought The date of 15th August 1947 marks 24th June 1975, the Supreme Court about serious class differences and attainment of long thrived granted a conditional stay on the the violence in Punjab was an independence with the end of order. On 25 t h June 1975, unforeseen by-product of the British rule in India. This was the J a y a p r a k a s h a n n o u n c e d same. Large number of Sikh day our revolutionaries and leaders nationwide Satyagraha as a f a r m i n g p o p u l a t i o n w a s fought for. The government then response of which Mrs. Gandhi economically marginalize. The formed had to overcome many invoked Article 352 of the social problems such as alcoholism challenges but none had thought Constitution, hence, leading to and drug addiction began to that it would soon become arbitrary national emergency[2]. The increase. and whimsical. The politics set a reasons cited were “internal The assassination of Mrs. Gandhi ground for power struggle instead disturbance” and “armed rebellion”. took place on 31st October 1984. of focusing on issues that needed However, democracy was hijacked This led to serious Human Rights immediate attention. The country to serve personal interests[3]. The annihilation which was instigated became vulnerable to misuse of F u n d a m e n t a l R i g h t s w e r e by the leaders of Congress Party. power. suspended. The law of Preventive Thousands of Sikhs were killed, Political unrest against the then detention was overused. People tortured and were forcibly government began in 1973 when did not even have the right to use disappeared in Delhi and some the opposition began to intensify Article 32[4] which is known to be other parts of the country. The law

PUCL BULLETIN, OCTOBER 2019 12 and order completely failed. In deliberately hid from the public but In order to sum up, the loopholes Punjab the cases of enforced later, the recording was disclosed and the politics are hard to be disappearance, extra judicial leading to his(Gilani) acquittal. to understood by a common man. killings and mass secret cremation time. In its judgment of August People tend to believe whatever took place. Judiciary failed to 2005, the Supreme Court rejected they get to know from the corrupt provide justice and investigations the confession of Azal obtained by media and hence lack to apply their were not made properly rather was police violating procedures but own mind. Media truly shapes the manipulated. In 2005, Dr. approved the death sentence opinion of people as what is shown Manmohan Singh, the then P.M., awarded to him. It was also said in is what is believed. Thus, the deeply apologized for the Delhi the judgment that his crime had government controls and misuses carnage of Sikhs during November “shaken the entire nation and the the same to remain in power.. The 1984.. collective conscience of the society independence of judiciary has The hanging of Afzal Guru has will only be satisfied if the capital sought to be curtailed from time to proved to be one of the biggest punishment is awarded to him”. time to serve political interests. The stains on India's democracy. Afzal The mercy plea was filed and Dr. ruling parties always want to stay in Guru was the prime accused in the Abdul Kalam gave a very patient power by hook or by crook. It has attack on Parliament in December hearing to the family of Adzal. only endangered democracy of the 2001. The incident took place when However, in February 2013, the nation. The future of world's largest few armed men drove through the then President Pranab Mukherjee democracy is at stake and there is gates of Indian Parliament in a car rejected the mercy petition. Guru an urgent need to save it in order to fitted out with a bomb and attacked was hanged without even informing bring about stability and progress.. the Parliament. It was alleged that his family and reportedly he was References: Guru helped to plot the attack and himself being told two hours before [1] The rival of Mrs. Gandhi from Rae Bareilly arranged logistics for Pakistani his execution. He was hanged and constituency attackers. However, Professor buried in secrecy and his body not [2] The book “Emergency Retold” by “Kuldip Nayar” S.A.R. Gilani was also alleged of returned to family. The influence [3]Ibid making telephonic conversations and pressure of opposition and [4] This right is the Right to Constitutional with the terrorist but no proofs were media was so much so that the then Remedies granted under the Indian found. Moreover, in a popular news government feared the loss of its Constitution. *Ritika Sharma, the first year student of channel, Afzal Guru himself prestige. Hence, the hanging of B.A.LL.B.(Hons.) from Vivekananda Law confessed that Gilani did not play Afzal in violations of rules to receive School, Vivekananda Institute of any role in the attack which was political gains. Professional Studies, affiliated to GGSIPU, Delhi q PUCL Chhattisgarh: Press Release: 22nd September 2019: *PUCL Calls for Judicial Inquiry into the “Encounter” of anti-mining activists of the Nandaraj movement* Condemns Persecution of Bela Bhatia, Soni Sori, Dantewada Sarpanches and 150-200 Tribal Villagers Taking note of the Fact-Finding extra-judicial killing and engaged in magisterial inquiry had been Report by human rights defenders a peaceful protest against this instituted to investigate the matter. (Bela Bhatia, Soni Sori, Madkam injustice, and condemns this police However, on 13th September 2019, Hidme and Lingaram Kodopi), action as retributive action meant to both were killed by the security Media Reports and the demands by intimidate those speaking up for forces in their village and declared various political and social Adivasi rights. as Naxalite commanders, carrying organizations, the Chhattisgarh It is well established that Podiya rewards of Rs 5 lakhs each for PUCL demands that the state Sori and Lachu Mandavi were information leading to their capture. g o v e r n m e n t i m m e d i a t e l y young and respected leaders from However, villagers claim that announces an independent probe village Gumiyapal in Dantewada neither was involved with the by a retired Judge of the High Court district who had been active in the underground Maoist movement, into the deaths of Podiya Sori and popular movement against the and deny the police allegations that Lachhu Mandavi in the so-called plans of the mining giant Adani they were killed in a firefight with the encounter on the night of 13th Group to start iron-ore mining security forces. As told to the Fact- September 2019. operations in Nandaraj Mountain in Finding Team consisting of human Furthermore, PUCL is appalled that Kirandul, which is held sacred by rights defenders, social activists the Dantewada police has lodged the tribals in the region. Recently, and media persons (Bela Bhatia, an FIR against the activists, there had been widespread Soni Sori, Linga Kodopi and Hidme sarpanches of Dantewada, as well protests against the fraudulent No- Madkam) the village folks clearly as the 150-200 unnamed tribal Objection Certificate (NOC) stated that on the night of 13th villagers, who were merely obtained from the Gram Sabha of September 2019, the duo along registering the complaint of an the affected village, and a with three other youth had PUCL BULLETIN, OCTOBER 2019 13 congregated in the school station. The police complaint and government, little seems to have premises for some light-hearted the peaceful demonstration by changed on the ground. The false entertainment. At around 9 pm that adivasis villagers was to raise a encounters continue and innocent night, when Podiya had already left voice against this extra-judicial Adivasis, standing up for their the school premises to sleep at a killing of two young men, and to rights, continue to be labelled as friend's place, the security forces inquire about the whereabouts of Naxalites and killed in cold blood by appeared, and rounded up the the third. However, none of them security forces. Human rights youth in the school and dragged were allowed to even enter the activists peacefully asking for Podiya from his friend's house. The police station and the complaint p o l i c e a c c o u n t a b i l i t y a n d five, including Podiya and Lachhu, itself was accepted only through transparency continue to be were slapped and beaten and the closed bars of the police station persecuted by draconian and illegal forcibly taken away by the security gate. The next day too, when the measures of the authorities. forces. En route, two of the men team returned to follow up on their Chhattisgarh PUCL loudly managed to escape and return to complaint, the SDOP of Kirandul condemns these actions of the their families. The next morning, was loud and accusatory, State Government and local police, the villagers learned that Podiya insinuating that they had rounded and demands that an independent and Lachhu had been killed and up the villagers and the protest was inquiry by a Retired Judge of the shown as dreaded Naxalites, and “stage managed”. It is ironic that High Court be immediately ordered the fifth youth, Ajay Telam, while the complaint of these to probe the murders of Podiya Sori continued to be in police custody. activists against the police was and Lachhu Mandavi of Gumiyapal With this information, in the evening never registered as an FIR, they village and the illegal detention of of the 16th September, advocate themselves were accused of Ajay Telam (who has since been and researcher Bela Bhatia, and violating the Model Code of released); and that the police the AAP leader Soni Sori, along Conduct and an FIR 62/2019 of PS immediately send a closure report with two tribal women activists, Kirandul was registered against for FIR no. 62/2019 of Police Hidme Madkam and Pande Bela Bhatia, Soni Sori, Sarpanch Station Kirandul against Bela Kunjami went to the Kirandul Police Nanda, Sarpanch's pati Bhima and Bhatia, Soni Sori, and other Station. Hundreds of villagers who 150-200 other villagers u/s 188 of villagers to the concerned had walked to the police station the IPC. magistrate and stop persecution of from their villages in a rally in Chhattisgarh PUCL is dismayed by human rights activists. protest against this injustice were this retributive behavior of the Degree Prasad Chouhan, President, also sitting peacefully in a Dantewada police and the fact that PUCL, Chhattisgarh; Shalini Gera, demonstration in front of the police despite the promises of the Baghel Secretary, PUCL, Chhattisgarh q Violation of Human Rights against the LGBTQA Community in India: Prejudice and Discrimination against LGBTQA people Deepika Purohit* A b s t r a c t : V i o l e n c e a n d movement has shifted to rights of and movies hardly show their discrimination on the basis of marriage and adoption in order to existence and if they do they are sexual orientation and gender have a family and equal protection either portrayed as an abnormal identity is one of the major issues in under the law from sexual offences and weird character or they are the world today that has gone and offences relating to marriage, merely reduced to their sexuality. unnoticed for years. This research etc. Instances of harassment and LGBTQA people usually face paper (abridged) analyses the violence are just as common but discrimination in their workplace as societal attitude and reactions usually go unnoticed due to a lack well. A study by Mission for Indian towards homosexuality and of awareness about alternative Gay and Lesbian Empowerment LGBTQA people in general, tries to sexualities and LGBTQA people in (MINGLE) conducted 'The Indian understand the cause of the private family life as well as in the LGBT Workplace Climate Survey problem which lies in people's deep larger social world including 2016' which showed that 40% of rooted belief systems and schools, colleges, workplace and LGBTQ+ employees were subject highlights the importance of other institutions and also because to harassment at workplace, two- s p r e a d i n g a w a r e n e s s a n d of the non representation and t h i r d s r e p o r t e d h e a r i n g educating people in order to make stereotypical portrayal of the homophobic jokes/comments and our society inclusive. LGBTQA people in media. For 20% faced discrimination from their Prejudice, Discrimination and instance, school textbooks, manager or human resources Violence against the LGBTQA subjects and teachers don't teach department.1 community in India: After students about non binary gender In a country like India where more decriminalization of homosexuality, identities and alternate sexualities than half of the population lives in the focus of the LGBTQA from a young age, television shows rural areas, it is important to

PUCL BULLETIN, OCTOBER 2019 14 understand what it is like being a know anyone from the LGBTQA happy and relieved with this LGBTQA person in the villages. In community. It also seemed that landmark judgment of the Supreme the rural areas people don't come most of them were not even sure Court and said that there is still a out to anyone because they fear the what the term LGBTQA meant and long way to go in order to get all public perception and are preferred to avoid answering any their rights as this is just the eventually forced into marrying questions. beginning and it is also believed someone from the opposite sex 2. If people have come out to that merely changing the law is not and having a family with them. their family/ friends: majority of enough. It should also be Above all, most of them end up the respondents did not come out to understood that this particular doubting themselves if they are their parents and family members interview was limited to people from actually “abnormal” because of this but were slightly more comfortable urban areas and so it must be noted reluctance and lack of acceptance in coming out to their friends that these laws have no meaning from the society and if someone because they were afraid of the for people staying in villages and dares to open up about their homophobic reactions and were rural areas where they have to face sexuality then they are exposed to not prepared for the same. One of daily harassment at different levels perpetual physical, sexual as well the respondent stated that, “I tried and where coming out to their as mental harassment. Religion too coming out to my parents. They families and revealing their plays a significant role in shaping dismissed it saying it's a phase.” sexuality or gender identity is not an the way people view the LGBTQA This shows that most of the parents option. community because almost all the and family members are intolerant 5 . E n v i r o n m e n t a t religions claim homosexuality to be because of the underlying College/Workplace and refusal unnatural. It is widely asserted by homophobia which eventually to job because of one's sexual people that the “Indian culture and affects their own children, as orientation: some respondents t r a d i t i o n ” d o e s n o t v i e w adolescents can face a huge feel that though their college homosexuality as natural and that identity crisis if a particular gender environment is friendly and same sex marriages are against is forced on them. inclusive but the administration and the traditional and cultural beliefs of 3. Discrimination on the basis of faculty continue to consider the Indians because homosexuality sexual orientation: Some people homosexuality a taboo. One of the is nothing but a western import. But stated that they heard their peers respondents says, “My College is the matter of fact is that LGBTQA were boycotted for being LGBTQA quite inclusive but I have come to people have always been a part of and one of the respondents knew realize that heteronormativity has the Indian tradition and culture, for someone who was disowned by his been so imbibed into us that we instance, there are a number of family when he came out however sometimes fail to even recognize experts who interpret Hinduism in they accepted him eventually. One it.” Most of the respondents did not support of same sex marriage and of the respondents described a witness such cases, however some in the temples of Khajuraho, there situation where she had witnessed of them had heard about such are images of women erotically a couple getting their son's head cases through social media. This embracing other women and men shaved at a temple for being gay s h o w s t h a t t h e i s s u e o f displaying their genitals to each who was also not allowed to enter homophobia is so deep rooted other and scholars have explained the temple by the head priest for the because of the problematic ideas this as an acknowledgment that very same reason and when the and beliefs entrenched in our people engaged in homosexual respondent questioned this act of society. acts (India Today Web Desk, 2018). the priest, she was stopped by her 6 . C a s e s o f R e s e a r c h M e t h o d o l o g y - family. She said, “Me and my physical/sexual/mental abuse Interview: Analysing Interview cousin asked the sister of boy that and violence/hate crimes Transcripts: I have chosen what Pooja they are performing. against the LGBTQA people: structured interview as one of the The sister replied, without even a according to all the responses it research methods which includes trace of emotion, 'my brother is not seems that the most common form qualitative information collected normal. He doesn't like girls and of abuse is mental abuse and from 24 people belonging to the hence we are purifying him, so that harassment that is extremely age group of 16-33. he may forget all the guy friends he prevalent in both private and public 1. The number of people has and concentrates on being life of a LGBTQA person. Cases of identifying as or being aware of a friends with girls'. It can be said that eve teasing, verbal and physical LGBTQA person: the responses a lot of people decide not to come abuse are also equally disturbing showed that 13 out of 24 out to their peers or parents in as one respondent says, “Yes. I respondents i.e. around 54% of the particular to avoid this daily have seen a lot of gay boys being respondents either identified harassment, humiliation and bullied by other straight boys Living themselves as LGBTQA or knew a discrimination they face in all in this kind of an environment LGBTQA person and the rest, i.e. spheres of life. where there is no inclusivity and around 48% of the respondents 4. Views on decriminalization of support from peers, parents as well neither identify as one nor do they Section 377: majority of them were as teachers from such a young age

PUCL BULLETIN, OCTOBER 2019 15 can be mentally disturbing. means is the need of the hour. United Nations has been working 7. Inclusivity in the Indian Law Proper socialization is required in with Member States to reject and views on denial of civil rights order to make sure that children discrimination and criminalization to LGBTQA people: the dominant from a young age are taught about based on homophobia however belief is that Indian law is not the basic understanding of sex, homosexuality and same sex inclusive enough, however it is also gender, different gender identities marriage continues to be a crime in believed that legal change alone and sexualities which can only be many parts of the world and a taboo cannot bring about a change or done by having conversations with otherwise. LGBTQA rights should alter the way people think and parents and family members and be seen as human rights due to the behave in a society. Even if legal then learning more about it in universality of human rights and changes are brought about, laws school from peers and teachers. denying these human rights to are not implemented to a great Media also plays a very big role in them portrays a mindset that extent in our country which is why spreading awareness as one dehumanizes LGBTQA individuals. decriminalization of homosexuality respondent says, “I think the media Decriminalization of homosexuality does not affect the people living in reaches people far more than we in India can be viewed as a rural areas as much as it affects the can imagine. If we start by monumental shift from the time urban people. One respondent representing LGBTQA people, in when the country hardly took notice stated that denial of civil rights to movies and shows, as a functional of the existence of the LGBTQA LGBTQA is justified but did not part of society, not in a stereotypical individuals but as said earlier we have any reason to back their way and definitely not as a punch still have a long way to go because answer but everyone else stated line, it could help normalizing it legal change alone is not enough that LGBTQA should have equal amongst the masses”. and what we need today is a social access to all the civil rights just like Conclusion: This research paper change in our society. any other person in the society. tries to bring into light the fact that 1The Indian LGBT Workplace 8. How can we bring about a harassing LGBTQA people puts C l i m a t e S u r v e y 2 0 1 6 , change? Having conversations, them at a heightened risk of http://www.gaystarnews.com both formal and informal and physical and psychological harm as *Ms. Deepika Purohit studying Sociology educating people along with well as economic and social Honours at Lady Shri Ram College, University of Delhi and interned at PUCL spreading awareness through all exclusion. At a global level, the Delhi in the month of June,2019. q Conduct of Foreigners Tribunals in Assam is questionable1 Prashanth Bhushan and Cheryl D'Souza Indian Express, 20th Septemebr, 2019 The fate of close to two million tribunals are being increased, from interview conducted by a panel of people excluded from the NRC in the existing 100 to more than 200, high court judges. Two hundred Assam rests with the Foreigners to adjudicate upon citizenship and twenty one members were Tribunals. The constitutionality and claims. The Supreme Court recently appointed without any conduct of these quasi-judicial recently ruled that the order of the written test and no transparency in bodies are questionable. Foreigners Tribunals will prevail the selection process. The Over 1.9 million people have been over the NRC order on citizenship members of the tribunal are excluded from the final National and declined to create an appellate selected by the Gauhati High Register of Citizens (NRC) in forum for appeal from the tribunals. Court, but the appointment is done Assam. The herculean executive Foreigners Tribunals were set up through the home and political exercise, mandated and closely by an executive order in 1964 in d e p a r t m e n t o f t h e A s s a m monitored by the Supreme Court, contravention of Article 323B of the government. The tenure of tribunal has incurred a staggering Constitution, which requires the members and extension of their expenditure of over Rs 1,200 crore legislature, by law, to provide for terms is based on a review of and immeasurable cost in terms of adjudication of matters by tribunals. “performance” conducted by the human suffering and death. The The matters that can be decided by Gauhati HC. buck now passes to the Foreigners the tribunal, listed within the Article, The minutes of the monitoring Tribunals. The fate of close to two do not include citizenship. “Judicial committee of the HC reveal that the million people who have been experience” was an essential government is also asked to send excluded from the NRC rests with appointment criteria for its its appraisal of tribunal members to these one-man tribunals. The members, as stated in the 1964 the court. The performance report constitutionality of these quasi- order. However, the eligibility was of the government has a special judicial bodies — from the relaxed in June 2019 by a column — “percentage of appointment of its members, notification, calling for applications foreigners declared”. Extension is arbitrary procedure for its from retired civil servants and often given to those who have functioning and the nature of its advocates with just seven years of declared the maximum number of orders — have always been in practice, to be appointed on a persons as foreigners — the low question. Yet, the numbers of these contractual basis, through an scorers are “terminated”. Pay and

PUCL BULLETIN, OCTOBER 2019 16 allowances of members is in practice, these are rarely over three years to be released on regulated by the government. mentioned in the notices issued by production of two sureties of Rs one “Impartiality is the soul of the the tribunals. With no grounds to lakh each and reporting to the local judiciary, independence is the life rebut and the burden of proof on the police station every week. blood of the judiciary”, held a person alleged to be a foreigner, it However, four months after the Constitution Bench in UOI v R. becomes impossible to present a order of the Supreme Court, only Gandhi (2010). In the absence of cogent case before the tribunal. nine declared foreigners have been security of tenure and dependence Most of those declared foreigners released while 355 remain on the government, these tribunals by the tribunals are poor and do not detained for more than three years, cannot function freely and have access to legal aid to as on June 2019. impartially. There is no mechanism represent them through the Diversity, plurality and inclusivity for receiving complaints against procedural spiral. If a person does form the bedrock of the Indian members of a tribunal, giving a free not appear before the tribunal, Constitution, which abhors hand to such members to either for lack of understanding of systematic targeting of the adjudicate, most often without any the notice issued or in the absence minorities and xenophobia. judicial experience, on citizenship of any notice, such persons are Unfortunately, in Sarbananda — the right to all rights. declared as foreigner by an ex Sonowal (2005), the Supreme Apart from those excluded from the parte order. According to a question Court itself laid the ground for NRC, who now have to appeal in in the Lok Sabha in July this year, xenophobia. Relying on unverified the Foreigners Tribunals within a the minister of state in the Ministry reports about the influx of period of 120 days, the Assam of Home Affairs stated that as many foreigners, the apex court declared Border Police and the Election as 63,959 persons have been the Illegal Migrants (Determination Commission refer cases to the declared foreigners through ex by Tribunals) Act unconstitutional tribunals. Inquiry reports submitted parte proceedings in Assam on the ground that it placed the by Assam Border Police to the between 1985 and (February) burden of proving a person to be a tribunal, while making a reference, 2019. The order of the tribunals can foreigner on the state. These are often blank. There are be challenged before a division tribunals were manned by proper allegations that poor and unlettered bench of the Gauhati High Court in judges and the percentage of those are randomly picked up and, on writ jurisdiction, most often distant declared foreigners was low. The non-production of citizenship and beyond the means of the poor. Supreme Court declared that the documents, referred to the Once a person is declared a Union had failed to protect the State tribunals. Further, the Election foreigner, s/he can be detained of Assam against “external Commission, since 1997, under the under Section 4 of the Foreigners aggression” caused by the huge pretext of a “strict scrutiny” of the Act, 1946. There are close to 1,000 influx of illegal migrants from voter list, started an exercise that detainees in six detention centres Bangladesh! This astounding marked D or “doubtful” against any a c r o s s A s s a m . P e n d i n g judgment has since set the tone for person in the list, arbitrarily, without deportation, these persons all future proceedings under the any investigation. In the absence of languish in sub-human conditions Foreigners Act. investigation, even decorated army with little or no access to legal aid or This article first appeared in the officers have been referred as rights such as adequate healthcare print edition on September 20, illegal immigrants to the tribunals. and education. According to the 2019 under the title 'Courts of These tribunals have the power to government's own figures, only injustice'. Bhushan and D'Souza regulate their own procedure for four such declared foreigners have are advocates at the Supreme disposal of cases expeditiously. been deported since February Court of India. 1 The section 3(1) of the Foreigners 2013. Since there is no agreement https://indianexpress.com/article/opinion/c Tribunals Order requires that the with Bangladesh to deport declared olumns/assam-nrc-final-list-foreigners- tribunal shall serve on the person to foreigners, their detention tribunals-6011356/ @ 22Sep2019 whom the question relates, a copy seemingly is indefinite. The Courtesy: Indian Express, 20.9.2019 q of the main grounds on which he is Supreme Court, in May, ordered all alleged to be a foreigner. However, those who had been in detention for

Update on Narmada Case before the SC – NAPM Statement Supreme Court issues notices in contrary to Narmada Tribunal's A d v o c a t e , a p p e a r i n g f o r the case concerning submergence Award (NWDTA) and earlier Petitioners, submitted before the due to increase in water level in judgments of the Supreme Court, Supreme Court that Sardar sardar sarovar, without completing wherein it is mandated that no Sarovar being an inter- State resettlement & rehabilitation. submergence should take place project, terms and conditions of the Next hearing fixed on 26.09.2019. without rehabilitation, came up for Award are binding on the The Writ Petition, filed by persons hearing today after impleadment of concerned States i.e. the States of affected by submergence in Sardar State of Gujarat and Maharashtra Gujarat, Madhya Pradesh and Sarovar due to direction given by as parties. Maharashtra. The stipulation that the Narmada Control Authority Sh. Sanjay Parikh, Senior no submergence should take place

PUCL BULLETIN, OCTOBER 2019 17 till complete resettlement and 27.05.2019, objected to this violated even the time schedule rehabilitation is done, is not only a unilateral decision and, among mentioned above. As a result, 178 mandatory condition in the said others, pointed out the loss of 229 villages, people living there with Award, but was also affirmed by the cr due to non-production of women and children, having Supreme Court judgments in 2000 electricity and that the R&R of livelihoods, including prime and 2005. In those judgments, the thousands of families is pending. agriculture, fisheries, cattle Supreme Court held that even The NCA (R&R Sub Group) in its grazing, water transport, trading etc temporary submergence cannot proceedings dated 15.07.2019, with schools, dispensaries, places take place till R&R is complete. though noted Clause VI(2)(iv) of of worship, roads, large number of After the last order in February, NWDTA which clearly stipulates trees, grazing land, got submerged, 2017, the complete R&R should that no submergence should take resulting in human calamity of the have been done but the same did place without rehabilitation, it worst kind. The said decision was in n o t h a p p e n a n d i m m e n s e permitted raise of water level in the fact a cruel and inhuman way to sufferings faced by the people, dam as per the schedule,in the compel people to vacate under affecting livelihood, shelter and life, following manner: t h r e a t o f a n d i m p o s e d continue. S.No. Dam Height Date submergence. It was pointed out by the Petitioners 1. EL 131.18 12.08.2019 Today, the Bench consisting of that in April 2019, the State of 2. EL 134.18 31.08.2019 Justice N.V.Ramana and Justice Gujarat insisted that the dam 3. EL 137.72 30.09.2019 Ajay Rastogi, issued notices to should be filled up to 138.68m, to 4. EL 138.68 15.10.2019 Union of India, States of check the safety of the dam and Though it was noted in these Maharashtra, Madhya Pradesh, testing the dam gates. Also, though proceedings that rehabilitation Gujarat and Narmada Control the Award entitles the State of wasn't not complete, the NCA only Authority directing them to reply. Madhya Pradesh and State of said that according to NWDTA, The case is listed for hearing on Maharashtra to receive a defined orders of the Supreme Court, 26.09.2019 to decide the question share in the generated electricity at Action Plan should be framed by o f r e h a b i l i t a t i o n b e f o r e the project, but the State of Gujarat, each state to shift people. Due to submergence as well as the water instead of operating RBPH (the this illegal decision, water started level to be maintained in the Sardar main power house)assured that rising in the reservoir and was Sarovar Dam. t h e y w i l l c o m p e n s a t e t h e raised by targetting the special date Kamla Yadav, Devram Kanera, respective States. The State of of 17.09.2019, to reach the full Himishi Singh, Rohit Thakur, Madhya Pradesh, by letter dated reservoir level of138.68 mts.. This Medha Patkar q Tribute: Why I feel a Sense of Loss for Ram Jethmalani despite our Deep Ideological Differences Nandita Haksar* Why do I feel a personal sense of saw Jethmalani at the National Law to meet Geelani's wife. loss about the death on Sunday of School, where I was teaching. He Ram Jethmalani asked Arifa to Ram Jethmalani, a man with whom smiled and said hello with a twinkle swear that her husband was I had such deep ideological in his eye. Despite all my innocent and she did. He agreed to differences? reservations, I felt respect for him at take up the case even though it was The first time I had an open that moment. in the High Court and he only confrontation with Jethmalani was The next time I met Ram appeared before the Supreme when he came to Bangalore to Jethmalani was at his home when I Court. teach at the National Law School. went with a request to him to take He insisted that I assist him along He was at a meeting at which he up the case of one of the accused in with Kamini Jaiswal. I am very defended the destruction of the the 2001 Parliament attack case, grateful for the opportunity it gave Babri Masjid in 1992. I saw how his SAR Geelani, who had just been me to work with him, and I quickly words hit at a Muslim historian, who sentenced to death by the trial found out that he was a hard quietly walked out of the meeting; court. taskmaster. not as a protest but as a sign of I told him that I believed Geelani A hard taskmaster - Jethmalani humiliation. supported the cause of Kashmiri expected us to be at his desk by I stood up and called Jethmalani a nationalism but he was not guilty of 8.30 or 9 in the morning even if fascist and walked out of the being a part of the conspiracy to we had left his office past meeting hoping others would attack the Indian parliament. midnight. I remember the follow, but none did. The next day, I Jethmalani said he would first like number of times I picked up his

PUCL BULLETIN, OCTOBER 2019 18 phone and his clear, strict voice: smile: “I also tried to learn Arabic.” his persuasive arguments. This is a “Girls, why are you not here?” Bismillah, ever curious, asked why. skill the older lawyers had, but we One night, when we were working Jethmalani said he had met a rarely witness it in the hustle and very late and we three lawyers were beautiful woman in some part of bustle of daily practice. feeling very tired and hungry, a West Asia and had decided he A shocking attack - The day in f r i e n d d r o p p e d i n t o s e e wanted to be able to communicate 2005 when Geelani was shot Jethmalani. The friend apologised with her. So he started learning outside my house, my husband and for interrupting our session, and Arabic, but when he tried to get in I took him to the All India Institute of Arvind Nigam spontaneously said, touch with her again she had Medical Sciences. I then left my “Thank god you have rescued us disappeared. husband at the hospital and took an from Ram.” A political lawyer - Jethmalani auto. When I got into the auto, I A few days after the hearings was a political lawyer. This meant realised I had no money. I did not started in the parliament attack that he knew cases were not won have the energy to walk back to the case, I broke my rib when I fell near and lost merely by legal arguments. ICU to get money from my the prison gate after a legal visit to Unlike some lawyers who do not husband, so I told the auto to take see Geelani. I came limping into like media attention or campaigns me to Jethmalani's home. Jethmalani's chamber, and he around cases they take up, Ram Jethmalani was awake and looked up from his desk and asked Jethmalani knew that it was the still at work. I told him what had me for a case. There was no campaign which would determine happened. He was shocked. I question of any distractions when the outcome. hesitatingly asked if I could borrow we were working, and I need not Jethmalani would write a summary money, and he handed me a bundle have expected sympathy. This was of his arguments and give them to of Rs 10,000. I said I needed not about being human but about me to give the press; he knew change and I did not know how to discipline and professionalism. Kamini Jaiswal considered these break the bundle. He told me to At one point in the case, Ram acts of his not quite professional. keep the money and go home in his Jethmalani had gone to London Jethmalani also insisted that Mercedes Benz. This was a small because his daughter was Geelani's wife sit in court every day, glimpse of his generous nature. seriously ill and had been admitted a reminder to the judges that the Yes, he liked women. I have seen to hospital. Even from there, he case was about a human being. him flirt with a Pakistani woman. asked me to send him some files. It It is not only Ram Jethmalani: JB But it was always with the consent did not matter whether he was Dadachanji told me right in the of the woman. On one occasion, I doing the case pro bono or was beginning of my career as a lawyer, had dinner with him and there were charging the client. He put in the “Miss Haksar, 90% of law is about several women discussing pearls same amount of work – and psychology, only 10% is about law.” when Ram Jethmalani came in and towards the end of his life, each Once after arguing on a technical asked: “Girls what are you talking case he took up was a challenge. matter for almost two hours, we about?” One of them said: “Pearls.” I was amazed to discover how returned to his chamber. The other “Okay, I will buy you all pearl deeply he believed in the rule of the lawyers were praising him for his necklaces.” law, and he believed in upholding arguments, but I was silent. He Then he turned to me and said a the Constitutional principles. I once looked at me: “What do you think?” professional but warm hello. It was asked him whether he really I was always humbled by the way this reason I felt perfectly safe believed in the law after practising he would seek an opinion from working late in the night because he for so many decades and seeing someone who had not half his would not say even a word that was how the law really worked. experience. With some hesitation, I inappropriate if he felt you did not Jethmalani looked at me and said: said: “Sir, I know you have want it. In other words, he was a “Yes, I do.” explained the legal point but the true gentleman. Unfortunately, there is still no book judges are not convinced of the Ram Jethmalani won his case, and on Ram Jethmalani's court craft truth.” SAR Geelani was acquitted. and his understanding of the Indian Although judges are trained to keep Jethmalani was not in the court Penal Code. their feelings out of their when the judge read the order. The There were several moments I saw assessment of the evidence, if their media wanted our statement but Jethmalani's humanity. His ability to gut reaction is that the person is Bismillah and I went out of the court talk to people and make them feel guilty, they can interpret the law to quietly and went to jail. When we at home. One day, I found him fit their feeling. The next day, Ram got Geelani out, we took him chatting with Geelani's younger Jethmalani spent the day straight to Jethmalani's home so he brother Bismillah. Jethmalani found addressing the judge's implicit could address the media. out that Bismillah was studying assumptions, and I sat listening to Jethmalani recognised the gesture Arabic and said with a mischievous him mesmerised by the powers of and after the media had left, he

PUCL BULLETIN, OCTOBER 2019 19 Postal Regn. No.: DL(E)-01/5151/2018-2020 Posting : 1-2 October, 2019 at New Delhi PSO Date of Pub.: 28-29 September, 2019 came and said: “Thank you, Ram Jethmalani, was a great Regd. Office : Nandita.” lawyer who understood the 332, Ground Floor, Patpar Ganj It was not the publicity that he was relationship between politics and Opp.Anand Lok Apartments, after. He was way past that. It was a law; a warm, charming and Mayur Vihar-I, Delhi 110091 chance to intervene in the Kashmir generous man who loved his Tel.: +91-11-22750014 conflict. He wanted to win friends country and as a fellow citizen, I E-mail : [email protected] among Kashmiris by saving one of salute him. It has been a privilege to their own. have worked with him. [email protected] He believed in winning people over *Nandita Haksar is a human rights Website : www.pucl.org rather than imprisoning, torturing or lawyer and author, most recently, of hanging them. And in that I so The Flavours of Nationalism. She strongly agreed with him that our recounts Jethmalani's tireless work on the case involving Parliament attack Founder : Jaya Prakash Narayan ideological differences did not convict SAR Geelani. come in the way of working Link: https://scroll.in/article/ 936687/ram- President : Ravi Kiran Jain together, of defending the jethmalani-tribute-why-i-feel-a-sense-of- General Secretary : V. Suresh loss-despite-our-deep-ideological- Constitution, each in our different Treasurer : Surendra Kumar ways. differences q Vice-Presidents : Binayak Sen, G. Saraswathi (Ms.), N.D. Pancholi, P.B. D’sa, Radhakant Saxena, Sanjay Parikh. Secretaries : Kavita Srivastava (Ms.), Rohit Prajapati, Sudha Bharadwaj (Ms.), Vandana Misra (Ms.), YJ Rajendra Organising Secretaries : Ajay T.G., Arjun Sheoran, Nishat Hussain (Ms.).

Editor : V. Suresh Editorial Board : Sanjay Parikh, Ms. Kavita Srivastava, Ms. Sudha Bhardwaj, Ms. Daisy Narain (Prof.) Assistance : Babita Garg

V. Suresh, General Secretary, PUCL, on behalf of People's Union for Civil Liberties; Printed at: Royal Offset, 489, Patparganj Indl. Area, Delhi-92; Published at: 332, Ground Floor, Patpar Ganj, Opp.Anand Lok Apptt., Mayur Vihar-I, Delhi 110091; Editor: V. Suresh.

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